COBURN (RANDY A.) VS. CSX TRANSPORTATION, INC.
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RENDERED: OCTOBER 1, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000646-MR
RANDY A. COBURN
v.
APPELLANT
APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE ROBERT B. CONLEY, JUDGE
ACTION NO. 09-CI-00004
CSX TRANSPORTATION, INC.
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON, LAMBERT, AND WINE, JUDGES.
WINE, JUDGE: Randy A. Coburn appeals from an Order of the Greenup Circuit
Court granting summary judgment in favor of CSX Transportation, Inc. For the
reasons stated below, we affirm.
Factual and Procedural Background
On December 17, 2007, Randy Coburn, a resident of Ohio, filed a
Federal Employer’s Liability Act (“FELA”) claim against CSX Transportation,
Inc. in Franklin County, Ohio state court. Coburn alleged that CSX’s negligence
led to the injury he suffered while working at the company’s Russell, Kentucky rail
yard on January 5, 2005.
CSX moved to dismiss Coburn’s case on grounds of forum non
conveniens. The Ohio court granted the motion on May 22, 2008, and Coburn did
not appeal. More than seven months later, on January 7, 2009, Coburn re-filed his
complaint in Greenup Circuit Court, the county where the Russell, Kentucky rail
yard is located.
CSX moved for summary judgment, arguing that the statute of
limitations had run, thereby barring Coburn’s claim. As noted by CSX, the statute
of limitations on a FELA claim is three years. 45 U.S.C.A. §56. When Coburn
filed the first action in Ohio, 1076 days of that three year period had expired,
leaving Coburn nineteen days in which to re-file his claim. Since the statute of
limitations was tolled during the pendency of the Ohio claim as well as during the
thirty-day appeal period following its dismissal, Coburn had until July 11, 2008, in
which to re-file; however, he did not file his claim in the Greenup Circuit Court
until January 7, 2009, nearly six months after the statute of limitations had run.
In his response to CSX’s motion, Coburn argued that summary
judgment was not appropriate, and that CSX should be estopped from using the
statute of limitations as a defense. In support of his argument for equitable
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estoppel, Coburn provided an affidavit in which his attorney, Alva A. Hollon, Jr.,
outlined past cases involving CSX in which CSX had agreed to be bound by the
saving statute of the state granting the forum non conveniens dismissal. Coburn
argued that CSX should be estopped from invoking the statute of limitations
because CSX’s past conduct induced Mr. Hollon to delay filing the claim in
Greenup County, Kentucky. In response, CSX argued that it engaged in no
conduct that would warrant equitable estoppel and, furthermore, that this case is
unlike the previous CSX cases cited by Coburn.
Finding no genuine issue of material fact, the Greenup Circuit Court
granted CSX’s motion for summary judgment on March 12, 2009. Coburn filed a
timely appeal of the Greenup Circuit Court’s summary judgment order.
Analysis
When presented with an appeal of a summary judgment, this Court
must determine “whether the trial court correctly found that there were no genuine
issues as to any material fact and that the moving party was entitled to judgment as
a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). As this
is a question of law, we will review de novo. Cinelli v. Ward, 997 S.W.2d 474
(Ky. App. 1998).
Coburn argues that the trial court improperly granted summary
judgment because a genuine issue of material fact existed concerning whether the
doctrine of equitable estoppel tolled the statute of limitations. Coburn claims that
in the past, CSX has agreed to be bound by the saving statute of the state granting
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the forum non conveniens dismissal. According to Coburn, this “well-established
history of acting a particular way” caused him to justifiably delay re-filing his
claim in a more convenient forum; therefore, the doctrine of equitable estoppel
should have been invoked in order to toll the statute of limitations and to prevent
CSX from asserting that Coburn’s action was time barred.
In Gosney v. Glenn, 163 S.W.3d 894 (Ky. App. 2005), the Kentucky
Court of Appeals outlined the essential elements of equitable estoppel. First, there
must be “[c]onduct which amounts to a false representation or concealment of
material facts.” Id. at 899. Second, the party to be estopped is aware of the real
facts but the other party has no knowledge of or no means to obtain knowledge of
the true facts. Third, the party to be estopped has the intention or expectation that
the other party will act in reliance upon his conduct. Finally, the other party
detrimentally relies upon the conduct of the estopped party. Id. Additionally, the
Supreme Court of Kentucky has stated that, “in order to toll the limitations period,
the [conduct] envisioned by KRS 413.190(2) [,which addresses conduct that
obstructs an action,] . . . . must represent an ‘affirmative act’ and ‘cannot be
assumed.’” Emberton v. GMRI, Inc., 299 S.W.3d 565, 573 (Ky. 2009).
To invoke equitable estoppel, the party to be estopped must have
displayed conduct which is intended to represent or conceal material facts of which
the estopped party is aware but which are unknown to the other party. In arguing
for estoppel, Coburn suggests that CSX’s conduct in previous cases led him to
justifiably believe that his claim was timely re-filed in the Greenup Circuit Court
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and thus, provided sufficient grounds for estoppel. However, Coburn has failed to
recognize a significant distinction between CSX’s conduct in the present case and
CSX’s conduct in each of the previous cases to which he refers.
In the prior cases, CSX actively agreed to be bound by the saving
statute of the state in which the claim was originally filed, a fact to which Coburn’s
own attorney has attested in his sworn affidavit. As stated in CSX’s brief,
however, the reason CSX agreed to be bound by the original state’s saving statute
in two of the referenced cases was because the statute on the plaintiff’s claim had
run, and in order to obtain dismissal on forum non conveniens, CSX agreed to
preserve the plaintiff’s right of action. In the present case, however, Coburn still
had adequate time in which to re-file his claim after it was dismissed by the Ohio
court.
Furthermore, while Coburn may argue that such conduct constitutes
the “affirmative act” referred to by the Supreme Court of Kentucky in Emberton,
Coburn has failed to provide evidence to suggest that CSX intended that Coburn
rely on such past conduct or that CSX attempted to conceal any material fact to this
case. Emberton, 299 S.W.3d at 572. Additionally, CSX has in no way taken an
affirmative action directed toward Coburn in order to mislead or misrepresent its
position to Coburn. CSX did not suggest that it would be willing to be bound by
Ohio’s saving statute in the present case; rather, Coburn simply made an
assumption.
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Coburn’s estoppel argument fails for another reason. In order to
invoke estoppel, the party to be estopped must “act with the intention or
expectation his conduct will be acted upon.” Howard v. Motorists Mut. Ins. Co.,
955 S.W.2d 525, 528 (Ky. 1997), quoting Gray v. Jackson Purchase Production
Ass’n, 691 S.W.2d 904, 906 (Ky. App. 1985). Coburn, however, has offered no
evidence to suggest CSX intended or expected its past conduct to lull Coburn into
delaying the re-filing of his claim. Furthermore, nothing in Coburn’s brief or his
attorney’s sworn affidavit suggests misconduct on the part of CSX.
Therefore, considering the factual differences between these cases and
the fact that CSX did not make any representation to Coburn with the intent to
mislead him, it was likely not reasonable for Coburn to rely on CSX’s actions in
these unrelated cases.
Having presented no relevant evidence to prove the validity of his
estoppel claim, Coburn has failed to provide the Court with any genuine issue of
material fact which would warrant reversing the trial court. Gailor v. Alsabi, 990
S.W.2d 597, 604 (Ky. 1999), citing Adams v. Ison, 249 S.W.2d 791, 793 (Ky.
1952).
For the reasons herein stated, we affirm the Greenup Circuit Court’s
judgment granting summary judgment in favor of CSX.
ALL CONCUR.
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
John O. Hollon
Alva A. Hollon, Jr.
Jacksonville, Florida
James E. Cleveland, III
Alexander C. Ward
Ashland, Kentucky
Bruce E. Blackburn
Raceland, Kentucky
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